This weekend marks the 300th anniversary of the Statute of Anne, widely considered to be the foundation of modern copyright law. The Statute, formally titled “An Act for the Encouragement of Learning,” is often praised for placing intellectual property rights in the hands of individual authors and ushering in the era of public interest copyright law. In reality, however, the law’s most lasting legacy has been the misguided proposition that “the Encouragement of Learned Men to Compose and Write useful Books” cannot be accomplished without copyright: a system which restricts the flow and use of information, chills collaboration, and presupposes that property rights are necessary to encourage innovation.
The passage of the Statute represents the culmination of a centuries-long partnership between the monarchy and publishers, the effects of which continue to be felt today. In 16th century England, religious and political unrest, coupled with the proliferation of printed media, threatened to compromise the crown’s ability to control the masses. Queen Mary and King Philip engineered a clever media censorship scheme in response. In 1556 they struck a Machiavellian deal with the guild of London publishers: the publishers would cooperate with the crown to prevent the publication of undesirable works, and in exchange, the crown would grant them a monopoly over intellectual property rights and the power to destroy unlawful books and presses.
By the end of the 17th century, this partnership lapsed, threatening the publishers’ monopoly. The publishers tried repeatedly to reinstitute the scheme, but amidst the growing importance of the electorate and an increasing hostility to private monopolies, all their efforts failed. The publishers had to change their strategy. If they were unable to reestablish copyright all for themselves, the next best thing for them would be to assign property rights directly to authors, who, unable to print and distribute their works on their own, would have no choice but to contract with the publishers. Publishers could then bargain with the authors to get exclusive publication rights, in essence perpetuating their monopoly over books.
With this goal in mind, the publishers convinced Parliament that the creation of strong intellectual property rights was essential to encourage the advancement of learning.
So the Statute of Anne was born, and on April 10, 1710, became law. The Statute of Anne, which, like modern copyright, granted exclusive rights directly to authors for limited terms, was intended by Parliament to promote “the Encouragement of Learned Men to Compose and Write useful Books.” Intellectual property, which restricts individuals’ use of each other’s ideas, had formerly always been conceived as a tool of censorship. That it was now suddenly championed as a tool to encourage information sharing denotes nothing less than a radical shift and is testament to the success of the publishers in convincing Parliament that no one does anything for free.
This unfounded presumption that is now so deeply ingrained in modern conceptions of intellectual property, is the unfortunate legacy of the Statute of Anne. Hence the misguided challenge posed to the FLOSS movement with frustrating frequency: How can Free Software possibly provide adequate incentives to developers in the absence of strong proprietary intellectual property rights? Of course, our model does work. The fundamental flaw informing this question lies not in the shortcomings of the collaborative innovation model, but in the ancient assumption that only property rights can provide an effective incentive to write and publish.
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